Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JB v R [2012] NSWCCA 196 Hearing dates: 9 August 2012 Decision date: 12 September 2012 Before: McClellan CJ at CL at [1] RA Hulme J at [4] Schmidt J at [5] Decision: Leave to appeal be granted, but the appeal be dismissed. Catchwords: CRIMINAL LAW - appeal - leave to appeal against sentence - whether error in having regard to the standard non-parole period applicable to adult offenders as a reference point in sentencing - error conceded - whether there was error in assessment of the objective seriousness of the offence - error not established - impact of the consideration of the standard non-parole period - s 6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: AE v R [2010] NSWCCA 203 Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 93 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lawton v R [2012] NSWCCA 16 R v Carroll; Carroll v The Queen [2010] 77 NSWLR 45 R v Chisari [2006] NSWCCA 19 R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296 R v O'Neill [1979] 2 NSWLR 582 R v Voss [2003] NSWCCA 182 YS v R [2010] NSWCCA 98 Category: Principal judgment Parties: JB (Applicant) Regina (Respondent) Representation: Counsel: Mr S Corish (Applicant) Ms H Wilson (Respondent) Solicitors: Legal Aid NSW (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/76871 Publication restriction: None Decision under appeal Date of Decision: 2011-11-09 00:00:00 Before: Garling DCJ File Number(s): 2011/76871 Judgment 1McCLELLAN CJ at CL: I agree with Schmidt J. 2This is yet another case where a young offender affected by alcohol initiates a violent and unprovoked attack on another person occasioning serious injuries. The frequency with which this Court sees offences of this type may indicate that there are inappropriately benign attitudes to violent behaviour in some parts of the community. It is a matter beyond the expertise of this Court but it is impossible not to ask the question whether the enthusiasm of many in the community for violence in some sports, cinema and electronic entertainment or a combination of these things may contribute to those attitudes. When those attitudes are held by young people whose inhibitions have been diminished by consuming excessive alcohol or drugs, very serious problems can arise. Great and irreparable damage can be inflicted on others. In some cases the violence results in the death of the victim. 3There are limits to the action which a court may take to seek to confine these problems Punishing offenders may deter that person from similar behaviour, although that is not always effective. The courts have also emphasised the importance of general deterrence in relation to this type of offence: see R v Carroll; Carroll v The Queen [2010] 77 NSWLR 45. However, the apparent frequency and seriousness of the issues require that they be addressed by all responsible members of the community. 4RA HULME J: I agree with Schmidt J and also with the observations of McClellan CJ at CL. 5SCHMIDT J:The applicant pleaded guilty to an offence of wounding with intent to cause grievous bodily harm. He was sentenced by Garling DCJ to an overall term of 5 years and 3 months imprisonment, dating from 9 March 2011, with a non-parole period of 3 years. The applicant seeks leave to appeal his sentence on two grounds. The first, that his Honour erred in having regard to the standard non-parole period applicable to adult offenders as a reference point in sentencing him for his offence and the second, that his Honour erred in his assessment of the objective seriousness of the offence. 6The facts agreed below were that the applicant was aged 17 years and 3 months when he seriously injured another boy of similar age, while with a group of friends late at night at a park near Maroubra Beach. He attacked his victim, when he was sitting on a park bench, first punching him eight to ten times to the head. After walking away, the applicant returned and again punched the victim to the head, this time from behind, with the result that the victim fell to the ground unconscious. The victim suffered bleeding to the brain, swelling and fluid to the brain, a brain haemorrhage, a wound to the back of the head, a fractured eye socket and chipped front tooth. The applicant was later arrested after leaving Bidura Children's Court, where he had appeared on unrelated matters. He was bail refused and later entered a plea to this offence. Ground 1 - the standard non-parole period 7The Crown accepts that having regard to the provisions of s 54D of the Crimes (Sentencing Procedure) Act 1999, the applicant being aged under 18 years at the time of the commission of the offence, his Honour erred in considering the standard non-parole period for the offence with which he was charged under s 33 of the Crimes Act 1900. The maximum penalty for that offence is 25 years and the standard non-parole period 7. 8His Honour's attention was drawn to AE v R [2010] NSWCCA 203, where at [21] - [26] the operation of s 54D of the Crimes (Sentencing Procedure) Act was considered. His Honour was addressed by the applicant's counsel on the basis that the offence fell within the low mid-range. For the Crown it was initially submitted that the range did not arise for consideration, because the standard non-parole period did not apply to the applicant. When his Honour nevertheless pressed her as to where in the range of objective seriousness the offence fell, it was submitted that it fell at the upper end of the middle of the range for offences of that kind. 9It was accepted for the Crown that his Honour erred in considering that while the standard non-parole period did not have to be imposed, because the applicant was a child and because he had entered a plea, it was still of relevance in the sentencing exercise, as a reference point or presumably a guidepost. 10The concession was properly made, with the result that leave to appeal should follow, although it will be necessary to consider the effect of the use made of the standard non-parole period (see Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 93 per Spigelman CJ at [19].) 11Consideration of the proviso in s 6(3) of the Criminal Appeal Act 1912 has been triggered. The question to be determined is whether, taking into account all relevant statutory requirements and sentencing principles, "some other sentence, whether more or less severe, is warranted." Ground 2 - the objective seriousness of the offence 12The applicant pleaded guilty to an offence under s 33(1), which provides: "(1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence." 13As his Honour observed, given the maximum penalty imposed for that offence, under s 17 of the Children (Criminal Proceedings) Act 1987 the applicant had to be dealt with according to law. He had pleaded guilty to a 'serious children's indictable offence' defined in s 3 to include offences punishable by imprisonment for 25 years. The requirements of s 6 of the Act were also relevant to the sentencing exercise. It provides: "6 Principles relating to exercise of functions under Act A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim." 14The applicant's case on the second ground was variously put in written and oral submissions. Firstly, that his Honour's error in relation to the relevance of the standard non-parole period for this offence, had infected the sentencing exercise, with the result that the discretion had miscarried. It was submitted that the proper objective assessment of the seriousness of the offence placed it in the low range, requiring a lesser sentence than that imposed, reflective of the proper sentencing of a juvenile offender, having in mind the requirements of s 6. 15While it was accepted that this was a violent offence, resulting in serious injuries for the victim, it was submitted that this did not establish that the applicant was acting as an adult (see YS v R [2010] NSWCCA 98 at [22]). His Honour's approach to the question of general deterrence was also submitted to have been in error, as was his Honour's approach to the assessment of the applicant's intentions and his conclusions about the conduct in which the applicant had engaged. 16The Crown's case was that all of his Honour's findings were open, as was the conclusion that the offence fell slightly below the middle of the range for offences of this type. While that conclusion reflected the language and concept of a standard non-parole period offence, the objective facts warranted both the finding and the sentence imposed. On the evidence, the Court would conclude that no lesser sentence than that imposed on the applicant was warranted in law, given the nature and seriousness of the applicant's offence. The sentencing remarks 17It is apparent from his Honour's observations that he took the considerations raised by s 6 of the Children (Criminal Proceedings) Act into account. His Honour also exercised the discretion available under s 19 of the Children (Criminal Proceedings) Act, to direct that the applicant serve his sentence as a juvenile offender, taking into account evidence that the applicant was doing well in custody in a juvenile institution, where he was behaving himself and making progress with rehabilitation. His Honour, nevertheless, took the view that given the seriousness of the offence, the applicant would have to serve a substantial period of imprisonment, to date from the time of his arrest. That conclusion was unavoidable, on the evidence. 18His Honour outlined the matters in respect of which he was sentencing the applicant to be that the applicant had punched the victim to the face, after saying 'let's have a go', after approaching the victim where he was sitting on a park bench. He then struck the victim 8 to 10 times. The victim moved away, but the applicant walked behind him and again began punching him to the head, with the eventual result that the victim fell to the ground unconscious. 19His Honour noted that the applicant was aged 17 years and 3 months at the time of the offence. He noted his significant criminal record, with 14 convictions between 2008 and 2010 for similar offences of assaults and offences against the person. He was on bail at the time of this offence, for an assault committed on 22 January 2010 and another assault occasioning actual bodily harm, committed on 18 June 2010. He was also on probation for offences committed on 22 December 2009, involving assaulting an officer in the execution of his duty and resisting arrest. 20His Honour referred to a juvenile justice report, which outlined the applicant's difficult upbringing. He noted that he was in the care of DOCS, his mother having died. He still had the support of his father, who had provided a letter for the court. There was also a report from his stepmother. His Honour noted that the applicant had had a disjointed education; little success with employment; problems with alcohol; and problems with anger, when inebriated. He also noted that he was a competent rugby league player. 21The applicant also wrote a letter and gave evidence. He admitted to committing the offence while affected by alcohol. He accepted that he needed help and that he had to control his anger. He hopes to work as a greenkeeper, when released from custody. 22The applicant's evidence was that he had known the victim for some time, having lent him $400, which had not been repaid. He said that he had consumed half a bottle of bourbon, before he saw the victim in the park. He hit him 5 or 6 times, not meaning to cause the injuries which resulted from his punches. Afterwards he made sure that an ambulance was called, removed the victim's t-shirt to help stem the bleeding and ensured that there was a responsible person with the victim, before he ran away. He later went to the hospital, but did not go in because the victim's father was there. His Honour noted the applicant's evidence was that 'I regret it heaps. He didn't deserve to get hit'. 23His Honour also referred to the applicant's attempts to rehabilitate himself in custody and to documents provided, which attested to his good behaviour there and to satisfactory school work. 24His Honour noted the challenge to aspects of the applicant's evidence, about which he took the view that while he could not be certain that he had told the truth as to what had occurred in the incident, the fact was that the evidence established that he had attacked the victim, without reason or provocation. 25His Honour found special circumstances. He accepted the applicant's remorse, his attempts to rehabilitate himself, his need for rehabilitation and his youth. He noted the report of the psychiatrist Dr Allnut, which noted a similar history to that in evidence. Dr Allnut found no significant symptoms of mood, anxiety or psychotic disorder; no evidence of intellectual impairment or cognitive disorder; a difficult upbringing; and exposure to substance abuse. Personality disorder was not diagnosed and there were no major medical problems. Dr Allnut recommended drug and alcohol counselling, as well as psychiatric or psychological counselling. 26His Honour noted various aggravating and mitigating matters to be taken into account in fixing sentence, by reference to s 21A of the Crimes (Sentencing Procedure) Act. The mitigating matters were that the offence was not planned; there were some prospects of rehabilitation; there was also remorse and a plea of guilty. The aggravating factors were that the offence was committed while the applicant was on conditional liberty and that he had prior convictions for offences of personal violence. 27His Honour concluded that the offence was a most serious one, involving a vicious attack, unprovoked and without cause on another boy of about the applicant's age. It involved some 8 to 10 punches at a time when the applicant was with a group of young men. After the first punches the victim walked away, but the applicant hit him in the head again from behind, until he fell to the ground unconscious, having suffered very serious injuries. They were bleeding to the brain, swelling and fluid to the brain, brain haemorrhage, a wound to the back of the head, a fractured right eye socket and chipped front tooth. His current progress was not known, but his Honour noted that he had been hospitalised from 24 January to 1 February 2011. 28His Honour took the view that the sentence required both general and specific deterrence to feature, observing that the applicant had to be sentenced in such a way that 'other members of the community realise that if they attack people in this way they will be sentenced to lengthy terms of imprisonment.' 29His Honour noted that no weapon was used, but took the view that for an offence without a weapon, it was a very serious one. He also noted the need to consider the result of the applicant's conduct (see R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296). His Honour was satisfied that the applicant meant to hurt the victim, but did not mean to inflict injuries to the extent which resulted. He noted, however, that the applicant had been reckless in coming back a second time, rejecting the view, on the evidence, that the injuries which the victim had suffered were the result of the victim's head hitting the ground. His Honour observed that this was not a fact before him. He concluded that the injuries were received as a result of a combination of punches to the head. 30His Honour took the view that the applicant's self induced intoxication was not a mitigating matter. While it could in part explain why this vicious attack had occurred, it did not excuse it, particularly given the applicant's knowledge that he had a problem with violence and alcohol, which his Honour observed had happened many times before. 31As to the provisions of s 6, his Honour referred to R v Voss [2003] NSWCCA 182, where it was held that an offender almost 18 years of age cannot expect to be treated according to law substantially different to an offender who is just over 18 years of age. His Honour took the view that a young offender who conducts himself as an adult and engages in grave adult behaviour, must have less weight given to the various principles relating to the sentencing of young people, and more weight given to the objective seriousness of the offence. 32His Honour also referred to KT v R [2008] NSWCCA 51; 182 A Crim R 571, where reference was made to the principle that in sentencing juveniles, ordinarily more weight is to be given to rehabilitation than punishment and general deterrence, but where it was observed that when an offender conducts himself as an adult and commits an offence of great violence or gravity, the Court should give effect to the retributive and deterrent elements of sentencing. 33It was on this basis that his Honour concluded that but for the 25% discount for the plea, a sentence of 7 years would have been imposed. Taking into account the finding of special circumstances, a sentence with a total term of 5 years and 3 months was imposed, with a non-parole period of 3 years (some 57% of the overall term). Without that finding, the non-parole period would have been some 3 years, 11 months. The alleged errors 34In addition to the impact of his Honour's incorrect consideration of the standard non-parole period, in the written submissions advanced for the applicant on appeal, it was contended that while his Honour's findings were consistent with the agreed facts and the plea, by which the applicant had admitted to inflicting a wound with the intention of causing grievous bodily harm, his Honour was required to make a finding as to when the injury and the associated intent occurred. This was not a matter addressed below. 35In written submissions it was also put that on one view, the applicant did not appreciate the nature of the charge in relation to intentionally inflicting grievous bodily harm (see Lawton v R [2012] NSWCCA 16 at [25]). This was also not put below. It was also submitted that his Honour had wrongly considered questions of recklessness. It was urged that the evidence would lead to the conclusion that the offence fell just above the threshold for a finding that grievous bodily harm was intended. 36In oral submissions it was submitted that the evidence and his Honour's findings should have resulted in a conclusion that the offence fell at the lower end of the scale, if not the lowest. While this was a serious assault in a public place for no reason, that spoke of immaturity. The assault was submitted to be the sort of thing any young person would do, when fuelled by alcohol. The view was thus urged that this was an immature young person's offence, committed without considering the consequences of the behaviour engaged in. This was a factor which should be given greater emphasis in the sentencing exercise, when the principles of general and specific deterrence were considered. The impact of the consideration of the standard non-parole period 37It is not at all apparent that his Honour's regard to the standard non-parole period for this offence, had the impact on the sentence imposed for which the applicant contended, that is, that it increased the sentence which would otherwise have been imposed on the applicant for his offence. 38The maximum penalty for the offence was 25 years. The standard non-parole period was 7 years. The applicant was sentenced on the basis of a total term of imprisonment of 7 years, but for the discount for an early plea. In the result he received an overall term of imprisonment of 5 years and 3 months imprisonment, with a non-parole period of 3 years. That is not a heavy penalty for this offence. 39Both below and on appeal the parties referred to R v Mitchell where another s33 offence arose for consideration. There it was observed: "34There was little mitigation of the objective seriousness of the offence in the fact that the respondents were intoxicated by alcohol and the use of illegal drugs and that this in some way caused their uninhibited violence toward the victim. The court cannot permit a person to rely upon the fact that he had been ingesting illegal drugs as in any way excusing offending conduct or its consequences. It may be mitigating in so far as it indicates that the offence was impulsive, unplanned and that the offender's capacity to exercise judgment was impaired: Waters v R [2007] NSWCCA 219 at [38]. In this case its chief relevance was to the prospects of the respondents' rehabilitation in light of the evidence that they had both been addressing that issue. 35 The Judge took into account as a mitigating factor that the respondents did not intend the degree of harm that was caused to the victim. That consideration would be understandable in a case where the injury far outweighed what might have been envisaged as the consequence of the behaviour causing it. Such a consideration might be relevant in the case of, for example, a single punch to the face that results in the victim falling to the ground and suffering very grievous injuries as a consequence. But in this case the respondents indulged in what her Honour described as a brutal and sustained attack upon a defenceless person by kicking or stomping on his head and body while he was lying on the ground. The fact that the respondents might not have foreseen that the consequence of such serious conduct was to have left the victim in a vegetative state is of little, if any, weight in my opinion. 36 This case brings into sharp focus the difficulty of applying the standard non-parole provisions in a case where the standard non-parole period specified for a particular offence does not represent a non-parole period that would normally be appropriate for an offence falling within the midpoint of the prescribed statutory maximum. There are other examples, some where the standard non-parole period is equal to, or more than, half of the maximum penalty, see R v AJP (2004) 150 A Crim R 575 and some where the standard non-parole period is considerably less than half the maximum penalty. The latter category of offence was considered in R v Marshall [2007] NSWCCA 24, a case concerned with aggravated break, enter and steal contrary to s 112(2). There I wrote: 34 ........... it is not an easy task to make sense of, and apply, the standard non-parole period provisions in relation to s 112(2) offences. Firstly, the standard non-parole period is 5 years as against a head sentence of 20 years. One would expect as a matter of logic and the application of ordinary sentencing principles that, if an offence was hypothetically of the mid-range of seriousness, it would carry a sentence of half the maximum penalty, that is a total term of ten years and, according to the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period of seven and a half years. What then is to be made of the fact that the standard non-parole period is only 5 years? Does this disclose the intention of Parliament that the courts should take a more benign view of an offence under s 112(2) than the maximum penalty would seem to suggest? How does a court determine the sentence where the seriousness of the offence is somewhere above the mid-range of seriousness but below the most serious category of an offence under the section: by having more regard to the standard non-parole period or to the maximum penalty? 37 Where a particular case falls well above the mid-range of offending, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty in determining the appropriate sentence. This must be so otherwise an offence falling within the worst category of case, and so notionally attracting the maximum penalty, would be drawn away from that point by the standard non-parole period and a court could never impose the maximum penalty. This does not mean that the standard non-parole period loses all relevance and it may still have work to do as a guide to determining the non-parole period. So, for example, with an offence of objective seriousness well above mid-range it may be unlikely that, even after a discount for the plea of guilty, or a consideration of the subjective circumstances of the offender or a finding of special circumstances the result would be a non-parole of, or below, the standard non-parole period prescribed. 38 Of course when the maximum penalty is the principal factor used as a guide in determining the appropriate sentence rather than the standard non-parole period, the court is then considering primarily what the total term of the sentence should be. The court determines as against the maximum penalty, and taking into account that this is the prima facie sentence for an offence falling within the worst category of offending encompassed by the section, how serious is the criminality in the particular case and how much of the maximum penalty is warranted having regard to all relevant sentencing considerations including of course those matters specified in s 21A of the Crimes (Sentencing Procedure) Act and the purposes of sentencing as set out in s 3A of that Act." 40His Honour took the view that this offence fell just below the mid-range. Given that conclusion, if his Honour had sentenced the applicant on the basis discussed in [38] of Mitchell, that is by assessing its seriousness by reference to the considerations which flow from the maximum penalty imposed of 25 years, without any consideration being given to the standard non-parole period of 7 years fixed for a mid-range offence, it is by no means certain that the applicant would have received a lower sentence than that imposed. 41Notwithstanding that in many cases the introduction of a standard non-parole period generally resulted in increased sentences, in this case it is quite possible that his Honour's incorrect reference to the standard non-parole period had an ameliorating effect on the sentence imposed. The other alleged errors 42This was a very serious offence, albeit one committed by a young person, a matter to which his Honour had proper regard. 43Contrary to the case advanced for the applicant, there was no error in his Honour's conclusions about the matters which he had to take into account in sentencing the applicant. The applicant was almost 18 years of age when he committed this offence. On his evidence he was well aware of his propensity for violence when intoxicated. He had a considerable record of violence, with repeated offences committed even when on conditional liberty. He was both on bail and on probation at the time of this very serious, unprovoked attack, during which he twice accosted the victim, delivering on both occasions a series of punches to his head, which eventually rendered him unconscious. 44That such punching resulted in the serious injuries which the victim suffered, was properly accepted by the plea. The conduct disclosed in the agreed statement of facts and the applicant's evidence provided a proper foundation for the conclusion which his Honour reached, as to the nature and seriousness of the offence; that the applicant had to be treated as an adult; and that there was a need for both general and specific deterrence to feature in the sentence imposed. 45His Honour also took proper account of the applicant's subjective circumstances, including his youth and the relevant mitigating factors, both in the discount of 25%, the special circumstances found and the order made under s 19 of the Children (Criminal Proceedings) Act. 46His Honour did not err in the approach which he took to the applicant's evidence. In chief it was: "Q.There is a reference to a number of hits in the police facts, do you remember how many hits you struck him with? A.Because I was drunk, but I would have said like around five or six hits. Q.You now are aware of the damage caused to [J]? A.Yes. Q.Did you expect the damage to be that significant? A.No I didn't." 47During the course of cross-examination the applicant's evidence raised the possibility that the injury was caused by the victim hitting his head on the concrete. There was an objection to the cross-examination on that evidence. His Honour allowed to it to be tested. It was later submitted for the applicant that his evidence showed that he clearly did not intend to wound the victim to the extent that he was wounded and that it was relevant that when he saw the extent of the injury, he returned to render assistance. It was also submitted that while this was not a case of a single punch, it would be considered that there had been a fight in which very grievous injuries had been inflicted, injuries which on the applicant's evidence, he had never intended. 48The Crown submitted that in assessing the objective seriousness of the offence, his Honour had to consider the actus reus, the consequences of the acts in question, the factors affecting mens rea, motivation and mental state. Relying on R v Mitchell, it was submitted that one important aspect of a s 33 offence was the result of the conduct, that is the nature of the injuries inflicted, which will to a significant degree determine the seriousness of the offence and the appropriate sentence. In this case, it was submitted that the evidence of injuries suffered were well in excess of the wounding element of the offence. All of those injuries had to be considered (see R v Chisari [2006] NSWCCA 19). Also to be considered was that they were the result of a sustained attack, involving initial punching from which the applicant was pulled away by others and then a second assault, which caused the applicant to fall to the ground unconscious. 49His Honour concluded: "I have been referred to a number of authorities: R v Mitchell [2007] NSWCCA 296. In paragraph 27 the court said: "A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence." In paragraph 35, speaking of a case which was being discussed the judge took into account as a mitigating factor that the respondent did not intend to cause harm to the victim but the respondent indulged in what her Honour described as a brutal and sustained attack on a defenceless person by kicking and stomping on his head and body while he lay on the ground. The respondent might not have foreseen the consequences of such serious conduct, however that has little, if any, weight in the opinion of the then sentencing judge. In regard to this matter, I am satisfied to find that the offender meant to hurt the victim, but did not mean to injury(sic) him to the extent he did. He was, however, reckless. He came back a second time. I reject the view that the offender has that the injuries were caused when the victim's head hit the ground. That is not a fact before me. The victim received his injuries as a result of a combination of punches to the head." 50This is clearly not a case like Lawton v R, where on appeal the applicant sought leave to withdraw his plea in circumstances where it was established that he had been wrongly advised as to the elements of an offence under s 35(2) of the Crimes Act to which he had entered a plea, that offence requiring that the offender must have foresight that his or her recklessness might cause the victim grievous bodily harm. 51In this case, by his plea of guilty to the s 33 offence with which he was charged, the applicant admitted the factual matters which are the essence of the charge, namely, that he wounded or caused grievous bodily harm to the victim, intending to cause him grievous bodily harm (see R v O'Neill [1979] 2 NSWLR 582 at 588). The agreed facts and his evidence also provided a factual basis for the plea. He has not sought to withdraw that plea. 52His Honour thus had to consider both the agreed facts and the applicant's evidence, upon which it was submitted below that the applicant 'did not intend to wound the victim to the extent that the victim was ... in fact wounded'. His Honour reached a conclusion favourable to the applicant, in that regard. 53Even so, the evidence established, as his Honour found, that this was an offence of considerable violence, the seriousness of which may not be downplayed by the approach urged orally on appeal. It may not be accepted that young people, even when fuelled by alcohol, typically engage in serious offences of this kind or that this was properly to be treated as merely an immature young person's offence. His Honour was entitled to conclude that the applicant had engaged in adult behaviour, which required that considerations of both general and specific deterrence be taken into account in the sentence imposed. Having in mind the nature of the offence and the applicant's history of prior offences of violence, there can be no question that the conduct involved in this offence required the Court's denunciation by the sentence imposed. 54It is also relevant to note that his Honour did not accept the applicant's evidence, in various respects. That was a matter for him to determine. He was plainly in a much better position than this Bench, to make assessments as to the honesty and reliability of the applicant's evidence. 55His Honour concluded that the applicant had intended to inflict grievous bodily harm, when he punched the victim to the head, although he did accept that the applicant did not intend to hurt the victim as seriously as he was hurt. That conclusion was open and to the applicant's considerable advantage. Had it not been reached, a heavier penalty would have needed to be imposed. 56His Honour also took the view that the applicant had been reckless, when he returned to attack the victim a second time and that it was during that second attack, that he caused the injuries on which the charge to which the plea was entered rested. These conclusions were also clearly open and relevant to an assessment of the nature and seriousness of this offence. 57The applicant was aged 17 years and 3 months. He had a considerable history of violence. He gave evidence about the circumstances of this and past offences where he was affected by alcohol and unable to control his violent behaviour. On the basis of that evidence, his Honour's view that less consideration had to be given to the applicant's youth and more emphasis given to the need for deterrence was also open. 58Reference was made to R v Mitchell where it was observed: "27 A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. It should be borne in mind that, if the victim had died, the respondents would have faced a charge of murder. The injury suffered by the victim was, as her Honour noted, little short of death. 59In this case, the fact that the applicant did not foresee all of the serious consequences which resulted from his two unprovoked attacks on the victim, was given appropriate consideration by his Honour. There was no issue as to the applicant's intention to commit the offence. In assessing the nature and seriousness of the offence, consideration had to be given to all of the serious injuries which he in fact inflicted, not only what the applicant foresaw might have resulted from his violent attacks. As I observed earlier, his Honour's acceptance that the applicant did not intend all of the harm which he caused, was of considerable advantage to the applicant, given the result of his repeated punching to the victim's head, causing him eventually to fall unconscious to the ground, with very serious injuries to his brain, as well as to other parts of his head. 60The jurisdiction to intervene in this sentence requires a finding on appeal that some less severe sentence is warranted in law. In my view that conclusion is not open in this case, notwithstanding evidence led on appeal, as to the applicant's good progress towards rehabilitation in custody. This evidence is not of much assistance to the applicant, to the contrary, it may well reflect the deterrent effect of the sentence imposed, as well as the benefit which the applicant has received from the exercise of the discretion under s 19 of the Children (Criminal Proceedings) Act. Orders 61The orders I would propose are that leave to appeal be granted, but the appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2012